No Union Representative Privilege Before Grand Jury

Like many states, the Labor Board in New Hampshire has recognized a privilege shielding communications between union representatives and union members. The New Hampshire Supreme Court recently had the opportunity to decide whether the privilege extended when the prosecutor was seeking information from a union representative through the issuance of a grand jury subpoena.

The case arose in 2005, when a psychiatric social worker employed by the New Hampshire Department of Corrections sought union representation with respect to allegations that he had carried contraband into the prison. The shop steward for the Service Employees International Union, which represents Department of Corrections employees, interviewed the social worker and several other individuals.

A prosecutor for the State of New Hampshire subpoenaed the shop steward to testify before the grand jury as to what the social worker and others had told him during the investigation. The shop steward moved to quash the subpoena on the ground that his communications with the social worker and others were protected by a privilege between a union representative and a grievant. The dispute over the issue wound up before the New Hampshire Supreme Court.

The Court found that the “union representative privilege” only applied in a labor relations setting, and only when the employer was seeking to compel the union representative to divulge information. The Court traced the roots of the “union representative privilege” to a 1991 decision of the National Labor Relations Board, which ruled that an employer engaged in an unfair labor practice when it threatened a union representative with discipline for refusing to submit to interrogation about conversations with the union employee.

Where the Court parted company with the shop steward was whether such a privilege applied in a grand jury situation. The Court found that the privilege “is strictly limited to communications between the union member and an officer of the union, and operates only against the public employer, on a matter where the member has a right to be represented by a union representative, and then only when the observations and communications are made in the performance of a union duty. The shop steward has cited no case in which a federal or state court has ruled that some form of union privilege bars a prosecutor or grand jury from inquiring into conversations between the union member and a union representative.”

The Court observed that it had to be “particularly circumspect about creating new privileges based upon perceived public policy considerations. It is only when the need for the privilege is so clear and the desirable contours of it are so evident that it is proper for the Court to craft the privilege in common law fashion. Here, the shop steward cannot claim that the confidential relationship between union representative and union member has the same historic roots as those generally afforded the protection of common law privilege. This is not the type of relationship such as attorney-client, husband-wife, or clergy-communicant that over time the common law has considered important enough to sustain as privileged.”

In re Grand Jury Subpoena, 2007 WL 1695594 (N.H. 2007).

This article appears in the August 2007 issue